Obama’s Death Panel; The killing of an American citizen without due process is a national scandal—A Commentary by Bruce Ackerman ’67

October 7, 2011

Obama’s Death Panel; The killing of an American citizen without due process is a national scandal—A Commentary by Bruce Ackerman ’67

The following commentary was published in Foreign Policy on October 7, 2011.

Obama’s Death Panel; The killing of an American citizen without due process is a national scandal.
By Bruce Ackerman ’67

It has been a week since a drone attack rubbed out Anwar al-Awlaki, whose copious English-language sermons, YouTube videos, and anti-Western screeds served as a powerful vehicle for radical jihadism on the Internet. But a steady flow of leaks is only now revealing the scandalous way in which Awlaki, a U.S. citizen, was targeted for assassination.

The revelations should shock even those who believe that a fair-minded reading of the law and evidence provides a strong basis for killing Awlaki. For it is becoming increasingly clear that the White House conducted nothing resembling a fair-minded process. Only three years ago, President Barack Obama repudiated John Yoo's secret torture memos; but he is now repeating the same mistake -- and is making a worse blunder. This time around, he not only relied on another secret Justice Department memo to support his general bombing campaign in Yemen, but he also pinpointed Awlaki as a target on the basis of a scandalous process lacking all legal authorization.

At least this is what the leaks flooding the media suggest. We can't know the truth of these rumors from "authoritative" sources, and this itself is testimony to the scandal we are witnessing. Obama's fellow citizens can't begin to judge his actions on the basis of the shallow news releases and public commentaries provided by his spokespeople -- and rumors only make the situation worse. But given Obama's repetition of Bush-like scenarios, it isn't enough to insist that the White House should immediately provide us with suitably edited versions of the relevant documents. Obama should also support fundamental reforms that credibly assure Americans that the White House will never again be the site for legal rubber-stamping and arbitrary kill orders.

Let's begin with some of the facts leaking out of the administration. According to Reuters, American citizens like Awlaki aren't targeted directly by the president or politically responsible officials. The job is delegated to midlevel operatives in the White House's National Security Council (NSC), who then send their recommendations on to a panel of NSC "principals" comprising a shifting group of cabinet officers and intelligence chiefs, depending on the particular mission involved. We do not know how much information the "principals" receive or how much time they spend weighing the evidence. But such a transient body isn't a suitable forum for making life-and-death decisions about Americans. At the very least, the fate of fellow citizens should be determined by a seasoned group of decision-makers whose judgments are honed by deliberation over time.

This is all the more true because the president himself plays a passive role. The NSC informs him of its targets, and he is free to reject them, but he is protected from making the final decision -- perhaps to provide him with deniability in case the Yemenis or others get testy.

NSC staffers + transient principals + passive president = death. No law or regulation sets out this formula, nor is there even a public record of the existence of the NSC panels. If the Office of the White House Counsel knew what was going on in the Awlaki affair, it should have intervened immediately; and if it didn't, why didn't it?

The present case exhibits the dangers of the current jerry-built system. Nobody suggests that Awlaki was one of al Qaeda's leading military strategists. His real weapon was his impassioned anti-American sermons -- also known as "freedom of speech" and "free exercise" of religion. To avoid blatant unconstitutionality, NSC staffers tried to show that the preacher had moved beyond speech and had become involved in operational missions. But, according to the leaks, as reported by Reuters, "officials acknowledged that some of the[ir] intelligence ... was patchy."

Presidential apologists might point out that the federal courts refused to intervene when Awlaki's father tried to challenge the constitutionality of the White House's targeting decision, calling it a "political question." But judicial deference doesn't imply that the president can do whatever he likes. On the contrary: If there is no judicial review, it becomes especially important for the White House to assure fundamental fairness. There is no other check on political oppression or sheer incompetence.

Up to this point, I haven't challenged the administration's larger claim that, putting aside the decision to target Awlaki, it had the congressional authority to send drones over Yemen in the first place. But the legal basis for its wide-ranging use of drones is remarkably weak. Shortly after Sept. 11, 2001, Congress certainly authorized force against any terrorist group that "planned, authorized, committed, or aided" the 9/11 attacks. But Awlaki belonged to an organization, al Qaeda in the Arabian Peninsula, that didn't even exist at the time. Indeed, it's increasingly tough to say that Congress's 2001 resolution authorizes the United States' continuing activities in Afghanistan and Pakistan, given America's recent decimation of the original al Qaeda's fighting capacity.

Or so I've recently argued on this site. Perhaps the administration's secret Justice Department memo contains a convincing refutation of my challenge to its drone attacks in Yemen and elsewhere. But there is no point shadowboxing until the administration deigns to tell its many legal critics why they are mistaken. That's why I've concentrated my fire this time on the decision to target Awlaki in particular, rather than repeat my critique of its expanding war on terror throughout the world.

My point is that nothing like the NSC process should ever be used again to kill an American. If another citizen is ever targeted, it should only be after an extensive debate in Congress, leading to the statutory creation of a serious legal procedure designed to eliminate the obvious abuses revealed in the Awlaki case. Because ultimately, isn't preserving American democracy what this is all about?

Bruce Ackerman is Sterling professor of law and political science at Yale University and the author, most recently, of The Decline and Fall of the American Republic.